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Judge Rules Part of Texas Abortion Law Unconstitutional

Just one day before restrictive abortion laws in Texas were to take effect, a federal district court struck down a provision of the law that would require abortion providers to have hospital admitting privileges and ruled that restrictions on medication abortion could not be enforced in certain circumstances.

Judge Lee Yeakel ruled that the admitting privileges requirement was unconstitutional after finding that the provision had no rational relationship to improving patient care, treatment, or outcomes [see PDF]. The court also found that the requirement would force abortion clinics to close as the majority of providers do not have admitting privileges and would, for a variety of reasons, be unlikely to get them. As a result, the provision would place an undue burden on women seeking abortion services in Texas.

The court also considered the law's restrictions on medication abortion, which would force physicians to follow the FDA protocol on the use, dosage, and administration of mifepristone. The court found that the FDA protocol, written in 2000, no longer represents the medical standard of care for abortion providers, and that physicians have developed a new standard - endorsed by the American College of Obstetricians and Gynecologists - that requires a significantly lower dosage of mifepristone [see PDF]. This new standard of care, the "off-label" protocol, also allows medication abortion to be used "safely and reliably" up to 63 days following a woman's last menstrual period (LMP), versus the FDA protocol which limits medication abortion to 49 days LMP.

Although finding that the new off-label protocol is safe, effective, and more comfortable for women, the court determined that "individuals do not have a constitutional right to a preferred medical option, so long as a safe, medically accepted, and actual alternative exists" - in this case, surgical abortion.

But, Judge Yeakel also found that surgical abortion is not a medically sound option for certain women who are between 50-63 days LMP. For these women, the Texas law would be an undue burden on their ability to obtain an abortion. The court therefore ruled that the medication abortion restrictions were unconstitutional "to the extent those provisions prohibit a medication abortion where a physician determined in appropriate medical judgment, such a procedure is necessary for the preservation of the life or health of the mother," meaning that the law cannot be enforced in these situations.

"Today's decision has averted a catastrophic health crisis for women across the state of Texas," said Nancy Northup, president and CEO of the Center for Reproductive Rights. "Politicians, not doctors, pushed for both of these unconstitutional restrictions - despite the best medical standards for women's health care."

Judge Yeakel was appointed to the federal district court by President George W. Bush in 2003 on the recommendation of Republican Senators Kay Bailey-Hutchison and John Cornyn. He previously served, at the appointment of then-Governor Bush, as a justice on the Texas Third Court of Appeals.

In June, the U.S. Supreme Court agreed to hear arguments on whether an Oklahoma law that forces physicians to use the FDA protocol for medication abortions is constitutional. The Oklahoma Supreme Court struck down the law late last year. The Supreme Court has asked the the Oklahoma justices to provide more information on the state law before the case proceeds.

Media Resources: Federal Judicial Center; US District Court for the Western District of Texas 10/28/13; Reuters 7/18/13; Planned Parenthood 10/28/13; Congressional Record on Google Books; Feminist Newswire 9/16/13; SCOTUS Blog

© Feminist Majority Foundation, publisher of Ms. magazine

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